2004-110, STATE OF NEW HAMPSHIRE v. STEVEN GUBITOSI

day. The calls “started to become threatening in nature,” making Rubin fear During the summer of 2002, the defendant called Rubin numerous times each telephone calls from the defendant on her home telephone and cell phone. their relationship in A pril 2002. Soon thereafter, Rubin began receiving dating the victim, Martha Rubin, during the summer of 2000. Rubin ended The jury could have found the following facts. The defendant began

in the Superior Court (Manias, J.). We affirm. one count of stalking, see RSA 633:3 - a, I(a) (Supp. 2004), following a jury trial DUGGAN, J. The defendant, Steven Gubitosi, appeals his conviction for

brief and orally), for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

orally), for the State. attorney general, on the brief, and Robert S. Carey, assistant attorne y general, Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 2004 - 110 Belknap

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

tecum to U.S. Cellular. The subpoena required U.S. Cellular to provide against the defendant, the Attorney General’s office sent a subpoena duces In October p. 2 2002, as part of its investigation into Rubin’s allegations

restaurant and driven through the parking lot. When the defendant returned the call, he denied that he had called the Companion then called the defendant and left him a message on his voicemail. Companion returned to the table and told Rubin about the phone call.

that night. show that the defen dant called the number for Zack’s restaurant at 8:03 pm up,” then the phone went dead. The defendant’s cellular telephone records on the other end as the defendant. She told him to “[k]nock it off” and to “grow t ook the telephone from the waitress, listened briefly and recognized the person that the person on the telephone was asking for Martha Rubin. Companion name was Martha. When Companion replied that it was not, the waitress said waitress, who spoke briefly on the phone and then asked Companion if her The bartender was on the telephone. The bartender passed the phone to a Rubin and Kane in the dining area. Companion went to the bar to get a drink. Companion arrived at the restaurant shortly before 8:00 pm and sat with

damaged in the past. area of the restaurant where they co uld watch over Kane’s car, which had been “[f]earful, angry, [and] frustrated.” Rubin and Kane then moved into the dining glasses. She testified that seeing the defendant’s car that night made her feel license plate number. Rubin also saw the driver’s profile and the flash of his through the parking lot. Rubin and Kane both recognized the car and the Companion to arrive, they saw the defendant’s gold Lincoln Town Car drive dinner. While Rubin and Kane were sitting in the bar area waiting for Zack’s restaurant in Tilton to meet their friend, Kathleen Companion, for On September 19, p. 2 2002, Rubin and her boyfriend, Brian Kane, went to

Despite the officer’s warnings, the defendant continued to telephone Rubin. and that if he continued to ca ll her, the police would file charges against him. told the defendant that Rubin did not want to receive any more calls from him defendant from his work as a police officer in Pembroke, took the phone and Dex ter, the defendant called her cell phone. Officer Dexter, who knew the back, where he had a firearm secured. While Rubin was talking with Officer outside for a moment, then took her hand and placed it on the small of his incident in which the defendant had appeared at her home, asked her to step Police Department about the telephone calls. Sh e also described a recent On July 11, p. 2 2002, Rubin spoke to Officer William Dexter at the Concord

as though she was being followed. for her safety. She changed the locks on her doors several times and often felt p. 3 3

Valenzuela, 1 p. 3 30 N.H. 175, 189 (1987), cert. denied, 485 U.S. 1008 (1988). We constitute a search under Part I, Article 19 of the State Constitution. State v. register to reco rd and disclose the numbers dialed from a telephone does not In State v. Valenzuela, we held that the government’s use of a pen

United States, p. 3 389 U.S. 347, 361 (1967) (Harlan, J., concurring). prepared to recognize as ‘reasonable.’” Id. at 49 (quotation omitted); see Katz v. expectation of privacy and, second, that the expectation be one that society is a twofold requirement, first that a person have exhibited an actual (subjective) an expectation of privacy analysis for claims under Part I, Article 19: “[T]here is the telephone billing records obtained from U.S. Cellular. We recently adopted The defendant argues that he had a reasonable expectation of privacy in

court level in the first instance. State v. Goss, 150 N.H. 46, 47 (200 p. 3 3). to suppress is de novo, ex cept as to any controlling facts determined at the trial New Hampshire Constitution. Our review of the trial court’s order on a motion probable cause in violation of his right to privacy under Part I, Article 19 of the tele phone records because the State obtained them without a warrant or The defendant argues that the trial court should have suppressed the

I. Subpoena of phone records

a, II(a). We agree with the State. restaurant constituted an act as part of a course of conduct under RSA 6 p. 3 33:3 stalking under RSA 633:3 - a, I(a); and (4) th e defendant’s telephone call to the was sufficient to prove the defendant guilty beyond a reasonable doubt of U.S. Cellular and, even if he does, it was not overbroad; (3) the evidence at trial does not have standing to challenge the breadth of the subpoena directed at privacy in the telephone records obtained from U.S. Cellular; (2) the defendant The State argues that: (1) the defendant had no reasonable expectation of

cou rse of conduct under the stalking law. See RSA 6 p. 3 33:3 - a, II(a) (Supp. 2004). (4) the defendant was improperly charged with an inchoate act as part of a presented at trial was insufficient to find guilt beyond a reasonable doubt; and subpoena of the defendant’s phone records was overbroad; (3) the evidence admitting into evidence phone records obtained from U.S. Cellular; (2) the On appeal, the defendant argues that: (1) the trial court erred in

trial court denied the defendant’s motion. that U.S. Cellular had given to the State in compliance with the subpoena. The Prior to trial, the defendant filed a motion to suppress the phon e records

through October 18, 2002, for the defendant’s cell phone number. “[s]ubscriber toll information on outgoing phone calls” from April 12, 2002, p. 4 4

want to be made public” to support his argument that he has a reasonable household trash disclose information about the resident that few people would prescription bottles and similar items that are regularly disposed of in p. 4 49. He points to our observation in Goss that “[p] ersonal letters, b ills, receipts, garbage bags left in front of a residence for collection. See Goss, 150 N.H. at our holding in Goss that a person has a reasonable expectation of privacy in The defendant asks us to reconsider our holdi ng in Valenzuela in light of

Cellular in the ordinary course of its business. telephone calls that was recorded for billing purposes and retained by U.S. have a reasonable expectation of privacy in information concerning his cellular information is later disclosed. Id. at 188 - 89. Likewise, the defendant does n ot there is no violation of a protected privacy interest when the record of that the telephone company in order to make the telephone system work for him, Id. Thus, we concluded that when a defendant com municates information to

should make no difference for constitutional purposes. company of the caller’s desired connection, and such a distinction than human receptors of the message intended to inform the distinction between the two cases is the use of mechanical rather use of the company’s dialing and switching equipment. The only the decoded messages communicated to the company through the register installed on the company’s wire informs the government of . . . The same conclusion should follow by analogy when a pen of numbers orally communicated by [the defendant] to an operator. conducted, if the telephone company had informed the government protected privacy would have been infringed, and no search [i]t is obvious, and is indeed undispute d, that no constitutionally

of the completed call. Id. at 183. We observed that transmitted over the telephone company’s lines and addressed to the recipients to connect a call must be distinguished from the contents of communications the defendant’s telephones to the phone company for the purpose of enablin g it With regard to pen registers, we noted that the coded signals sent from

an outgoing telephone call. Id. at 181. in the inf ormation that was conveyed to the telephone company when he made 19, we concluded that the defendant had no reasonable expectation of privacy not explicitly adopt an expectation of privacy framework under Part I, Article outgoing telephone calls. See Valenzuela, 130 N.H. at 18 p. 4 4. Although we did has no legitimate expectation of privacy in the phone numbers di aled to make search within the meaning of the Fourth Amendment because the defendant Maryland, 442 U.S. 73 p. 5 5, 745 - 46 (1979), that the use of a pen register is not a relied, in part, upon the United St ates Supreme Court’s holding in Smith v. 5

here. Rather, we hold that the defendant does not have a reasonable contract.” Id. at p. 5 50 (quotation omitted). The same considerations do not apply remove trash will do so in the manner provided by ordinance or private also noted that it is “reasonable to expect that those who are authorized to not negate the homeowner’s expectation of privacy in their contents. Id. We and rummage through garbage containers left out for regular collection does 49. In Goss, we emphasized that the mere possibil ity that someone might open Second, we conclude that Goss is distinguishable. See Goss, 150 N.H. at

purpose.”). the service furnished . . . has been, is being, or may be used for an unlawful information that the attorney general “has reasonable grounds for belief that attorney general upon the written demand of the attorney general certain b, I(c) (2003) (requiring communication common carrier to furnish to the legislature from closely regulating subpoenas for phone records. See RSA 7:6 - Casey, p. 5 505 U.S. at 864. Moreover, nothing in today's decision prevents the special reason over and above the belief that a prior case was wrongly decided.” arguments to overrule Valenzuela, “a decision to overrule should rest on some holding. While we agree with the dissent that there are persuasiv e policy other legal developments since Valenzuela that would justify abandoning our on his telephone.” Valenzuela, 130 N.H. at 189. The defendant points to no not limit the use of a pen register to obtai n the numbers that a defendant dials “the Katz conception of protected privacy, if applied through article 19, would these decisions and their criticisms of Smith in Valenzuela and concluded that See, e.g., State v. Gu nwall, 720 P.2d 808, 816 (Wash. 1986). We addressed expectation of privacy in the numbers they dial when making telephone calls. held, under their respective state constitutions, that people have a legitimate ha ve declined to follow the Supreme Court’s holding in Smith and have instead meets this stringent standard. See id. He correctly notes that some States The defendant has failed to demonstrate that our holding in Valenzuela

U.S. 833, 8 p. 5 54 (1992)). Id. at 504 - 05 (quoting Planned Parenthood of Southeastern PA v. Casey, 505 seen so clearly as error that its enforcement was for that very reason doomed.’” decide the issue differently de novo, but “whether the ruling has ‘come to be asked to reconsider a previous holding, the question is not whether we would Motor Vehicles, 149 N.H. 502, 504 (2003) (quotation s omitted). Thus, when with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of revision in every case, deciding cases becomes a mere exercise of judicial will governed by the rule of law, for when governing legal standards are open to reasons. First, “[t]he doctrine of stare decisis demands respect in a society We decline the defendant’s invitation to overrule Valenzuela for two

(emphasis added). expectation of privacy in the billing records held by U.S. Cellular. Id. p. 6 6

obtained from U.S. Cellular. We agree. because he does not have a legitimate expectation of priva cy in the records The State argues that the defendant lacks standing to pursue this claim

and that the trial court allowed the State to engage in a “fishing expedition.” argues that the subpoena should have been restricted to records for that date with stalking based upon incidents that occurred on September 19, 2002. He April 12, 2002, through October 18, 2002. The defendant was later charged to U.S. Ce llular was overbroad. The subpoena covered the period of time from telephone records should have been suppressed because the subpoena issued Constitution and the Fourth Amendment to the United States Constitution, the The defendant also argues that, under Part I, Article 19 of the State

II. O verbreadth of subpoena

obtained from his telephone service provider. whether he had a reasonable expectation of privacy in the billing records had an unlisted number, to make the telephone calls has no bearing on Id. Likewise, the fact that the defendant used his cellular telephone, which

that it would. conceivable difference, nor could any subscriber rationally think his home phone rather than on some other phone could make no wished to complete his call. The fact that he dialed the number on number to the telephone company in precise ly the same way if he case. . . . Regardless of his location, petitioner had to convey [the] the site of the call is immaterial for purposes of analysis in this

observed that the exclusion of all others. Smith, 442 U.S. at 743. The Supreme Court subjective expectation of privacy because he used the telephone in his house to number. In Smith, the petitioner similarly argued that he demonstrated a privacy in the telephone billing records because he had an unlisted telephone Finally, the defendant argues that he had a heightened expec tation of

conclusion. this opinion, providing additional citations that support our analysis and settled law. The concurring opinion goes on to reiterate the major points in The concurring opinion continues to disagree with Goss, which, of course, is order to make use of its telephone service. See Valenzuela, 130 N.H. at 189. that only contain information that he voluntarily conveyed to U.S. Cellular in expectation of privacy in billin g records that were never in his possession and p. 7 7

person is actually placed in such fear. safety of a member of that person’s immediate family, and the reasonable person to fear for his or her personal safety or the co nduct targeted at a specific person which would cause a [p]urposely, knowingly, or recklessly engages in a course of A person commits the offense of stalking if such person . . .

I(a). RSA 633:3 - a, I(a) provides: The defendant was convicted of one count of stalking. See RSA 633:3 - a,

statements by witnesses. Id. and reject other parts of testimony, and adopt one or the other of inconsistent determining the credibility of witnesses. Id. The jury may accept some parts isolation. Id. It is well settled that the jury has substantial latitude in examine each evidentiary item in the context of all the evidence, not in beyond a reasonable doubt. State v. Flynn, 151 N.H. 3 p. 7 78, 382 (2004). We the evidence in the light most favorable to the State, could have found guilt defendant carries the burden of proving t hat no rational trier of fact, viewing stalking charge. In an appeal challenging the sufficiency of the evidence, the acts alleged in the indictment that constitute a course of conduct for the The defenda nt argues that there was insufficient evidence to prove the

III. Sufficiency of evidence

the State Constitution. See Ball, 124 N.H. at 232; Smith, 442 U.S. at p. 7 745 - 46. we reach the same conclusion under the Federal Constitution as we do under Because the Federal Con stitution affords no greater protection in this context, he does not have standing to claim that the subpoena was overbroad. See id. of privacy in the records obtained from U.S. Cellular. Thus, we conclude that As discussed above, the defendant did not have a reasonable expectation

33, 36 - 3 p. 7 7 (1993). privacy in the place searched or the item seized. See State v. Alosa, 137 N.H. which confers automatic standing, or (2) having a legitimate expectation of charged with a crime in which possession of an item or thing is an element, N.H. 226, 231 - 33 (19 p. 8 83). A defendant may have standing based upon (1) being Constitution, and cite federal opinions for guidance only. State v. Ball, 124 457, 466 (1983). We first address the defendant’s claims under our State whether any rights of the moving party were viol ated. State v. Flynn, 123 N.H. challenge the introduction of evidence by means of a motion to suppress is The threshold question as to the determination of a party’s standing to 8

N.H. 53, 56 (2003) (quotation omitted). Likewise, once the evidence of testimony, accepting or rejecting it in whole or in part.” State v. Mason, 150 jury which observes the witnesses, judges their credibility and hears their there may have been some inconsistencies in the evidence presented, “[i]t is the as voicemail messages that the defendant left on Rubin’s phone. Although of his voice over the telephone, as well as evidence of uncharged conduct such relied upon evidence that was equivocal, including Companion’s identification to her. See RSA 633:3 - a, I(a). The def endant argues that the jury may have restaurant where she was and then calling the restaurant and asking to speak of conduct targeted at Rubin by driving through the parking lot of the beyond a reasonable doubt that the defendant knowingly engaged in a course the verdict of guilty. See id. at 537. A rational trier of fact could have found The evidence, viewed in the light most favorable to the State, supports

be left alone. not want to receive any more telephone calls from him and that she wanted to had spoken to the defendant previously and told the defendant that Rubin did number for Zack’s restaurant that night. Officer Dexter also testified that he which were admitted into evidence, showed that the defendant had called the on the other end to “[k]nock it off” and “grow up.” The telephone records, was mentioned, that she then identified herself as Kathy and told the person that she listened to the speaker for a short amount of time, that Rubin’s name the restaurant’s telephone soun ded like the defendant’s voice. She testified With regard to the telephone call, Companion testified that the voice on

defendant’s car and the license plate through the restaurant window. he was familiar with the license plate number and he had a good view of the Kane testified that he had seen the defendant’s car on several prior occasi ons, the flash of his glasses as the car passed in front of the restaurant window. road when she saw it. She also testified that she saw the driver’s profile and and that it was leaving the restaurant parking lot and turning onto the main Rubin testified that the car was approximately three car lengths away from her gold Lincoln Town Car drive through the parking lot of Zack’s restaurant. September 19, 2002. Rubin an d Kane testified that they saw the defendant’s that the defendant drove to the restaurant where Rubin was eating on The following evidence was presented at trial to support the allegation

the jury to decide. See State v. Scognamiglio, 150 N.H. 534, 536 (2004). reasonable person to fear for his or her personal safety is a question of fac t for defendant engaged in a course of conduct targeted at Rubin that would cause a telephone her there after being told by police not to contact her. Whether the drove to a restaurant where Rubin was; and (2) the de fendant attempted to The indictment alleged two acts to prove a course of conduct: (1) the defendant however short, which evidences a continuity of purpose.” RSA 633:3 - a, II(a). A “course of conduct” is define d as “2 or more acts over a period of time, p. 9 9

that the defendan t’s conviction for stalking should be affirmed. I write BRODERICK, C.J., concurring specially. I agree with the lead opinion

NADEAU and GALWAY, JJ., dissented. DALIANIS, J., concurred; BRODERICK, C.J., concurred specially;

reasonably made Rubin fear for her safety. See RSA 633:3 - a, I(a). Rubin and that the telephone call was part of a course of conduct that defendant telephoned the restaurant with the intent to impart a message to the intended victim. Thus, it was sufficient for the State to prove that the require that the act of communication take place between the defendant and transmission, including but not limited to telephoning.” The statute does not 644:4, II, “communicates” means “to impart a message by any method of act of communication as defined in RSA 644:4, II (Supp. 2004). Under RSA RSA 633:3 - a, II(a)(7) provides that a course of conduct may include any

(quotation omitted). entire statutory scheme.” State v. Whittey, 14 p. 9 9 N.H. 463, 467 (2003) intent in enacting them, and in light of the policy sought to b e advanced by the N.H. 688, 690 (2005). “Our goal is to apply statutes in light of the legislature’s terms and to promote justice.” RSA 625:3 (1996); see State v. Hudson, 151 Id. We construe Criminal Code provisions “acco rding to the fair import of their of the statute and ascribe the plain and ordinary meanings to the words used. whole. State v. Clark, 151 N.H. 56, 57 (2004). We first examine the language legislative intent as ex pressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of

cannot be part of the course of conduct upon which the indictment was based. attempted to telephone Rubin at the restaurant is an attempted act and thus purposes of the stalking law). He contends that the allegation t hat he inchoate act under RSA 633:3 - a, II(a) (defining “[c]ourse of conduct” for Finally, the defendant argues that he was improperly charged with an

IV. Inchoate act

doubt. that the State failed to meet its burden of proving guilt bey ond a reasonable subject to the court’s control.” Id. Thus, we reject the defendant’s argument follows to a verdict and the evidence it considers while deliberating are not Monroe, 146 N.H. 15, 17 (2001). “Gener ally, in this State, the path a jury consistent with the trial court’s instructions, as it saw fit. See State v. uncharged conduct was admitted, the jury was entitled to use the evidence, p. 10 10

except as to their outward form and weight, a s if they were retained by the this kind in the mail are as fully guarded from examination and inspection, warrant, open letters to search for contraband. “Letters and sealed packages of Jackson, the Suprem e Court held that law enforcement could not, absent a to the viewing of addresses on letters deposited in the mails. In Ex parte In my judgment, the disclosure of telephone numbers here is comparable

the analysis is the same — i n neither case is the call’s content revealed. could be made from the billing records that a conversation may have ensued, through his billing records, as opposed to a pen register, and an inference Although the telephone numbers disclosed in Mr. Gubitosi’s case were obtained

co mpleted is disclosed by pen registers. of the call, their identities, nor whether the call was even purport of any communication between the caller and the recipient dialed — a means of establishing communication. Neither the sound. They disclose only the telephone numbers that have been whether a communication existed. These devices do not hea r official could not even determine from the use of a pen register “contents” of communications . . . . Indeed, a law enforcement Pen registers do not “intercept” because they do not acquire the

159, 167 (1977): described this distinction in United States v. New York Telephone Co., 434 U.S. for use by the telephone company. The United States Supreme Court phone call and the mechanical recording of numbers dialed for billing purposes believe that a real difference in expectations exists between t he content of a privacy, I am not persuaded that such business records are so shielded. I based upon probable cause. As much as I share the defendant’s desire for reasonable expectation of pri vacy that can only be breached by a warrant and maintained by U.S. Cellular in the regular course of its business, in a Here, the defendant seeks to cloak telephone billing records, possessed

Greenwood, 486 U.S. 35, 41 (1988). same issue, the United States Supreme Court agreed. See California v. expectation entitled to constitutional protection. When confronted with this enforcement, that did not transform his desire into a reasonable, real - world that his trash would remain off - limits to third parties, including law thoroughfare. While the defendant in Goss might have understandably wished matter what it contained, when left for pick - up adjacent to a public Goss had no objectively reasonable expectation of privacy in his trash, no dissent in part relies, was wrongly decide d. In my judgment, the defendant in 46 (2003), which the lead opinion attempts to distinguish and upon which the separately, however, because I continue to believe that State v. Goss, 150 N.H. p. 11 11

Amendment protections are not applicable to pen registers.”). judicia lly recognized expectations of privacy and violations of Fourth pen register is not a wiretap, and any questions concerning violations of the Ohio Bell Tel. Co. v. Williams, 407 N.E.2d 2, 3 (Ohio 1980) (“Furthermore, a regard to numbers dialed into a commercial telephone system.”); State ex rel. expectation of privacy, which society would recognize as r easonable, with Smith we conclude that . . . an individual does not have a legitimate parameters of the constitutional protection in Florida, and in accordance with 1985) (“We find that the rati onale expressed in Smith likewise delineates the his friend . . . .”); Yarbrough v. State, 473 So. 2d 766, 767 (Fla. Dist. Ct. App. by the telephone company with respect to either his own telephone or that of Defendant had no legitimate expectation of privacy in the records maintained arguments that the telephone toll - billing records should have been suppressed. Di Raffaele, 433 N.E.2d 513, 516 (N.Y. 1982) (“There is no merit to his Schultz, 850 P.2d 818, 829 - 30 (Kan. 1993) (emphasis added); see also People v. lawyer, both of which have statutes guaranteeing privacy . .. .” State v. example, in a confession to a minister or in conducting legal business with a expectation of privacy in bank and telephone records than there is, for 442 U.S. 735 (1979), the K ansas Supreme Court stated, “There is no more criticisms of the Supreme Court’s holdings in Miller and Smith v. Maryland, telephone records absent statutory protections. After a lengthy explanation of Other States have refused to find reasonable expectations of privacy for

its State Constitution. State v. Fredette, 4 p. 11 11 A.2d 65, 66 - 67 (Me. 1979). This same conclusion was reached by the Maine Supreme Judicial Court under States, 385 U.S. 293 (1966); and Lopez v. United States, 373 U.S. 427 (1963)). Id. at 443 (citing United States v. White, 401 U.S. 745 (1971); Hoffa v. United

third party will not be betrayed. used only for a limited purpose and the confidence placed in the even if the information is revealed on the assumption that it will be to a third party and conveyed by hi m to Government authorities, Amendment does not prohibit the obtaining of information revealed Government. . . . This Court has held repeatedly that the Fourth that the information will be conveyed by that person to the The depositor takes the risk, in reve aling his affairs to another,

writing for the majority, stated: determination, or even notification to the account holders. Justice Powell, institutions were subject to subpoena without either a probable cause Court held that cleared checks and deposit slips in the possession of financial Indeed, in United States v. Miller, 425 U.S. 435 (1976), the Supreme

727, 733 (1877) (emphasis added). parties forwarding them in their own domiciles.” Ex parte Jackson, 96 U.S. p. 12 12

Ev. 503(a), 503(b). But even given these statutory protections, this court has A:19 (Supp. 1959) (current version at RSA 330 - A:32 (2004)); see also N.H. R. by statute in 1969 and 1957, re spectively. See RSA 329:26 (2004); RSA 330 v. Davis, 108 N.H. 45, 50 (1967). These protections were subsequently added psychologist - patient privileges as protected under our common law. See State lines. At one time, this court refused to recognize physician - patient and State and federal legislative bodies have already drawn these kinds of

in future cases. constitutional rule proposed by the dissent would lead to undesirable outcomes personal desires for privacy and to strike the proper balance. Creating the is increasingly important for the legislature to weigh invasiveness agai nst where the constitutional expectations of privacy may not reasonably survive, it are objectively reasonable. In those contests between privacy and technology that they will not affect, and in some cases shape, wha t expectations of privacy objectively reasonable expectations of privacy, it would be imprudent to suggest customers. While technology’s possibilities do not and should not control information in an effort to create expansive databases of current and potential through ever - more sophisticated technology. Businesses buy and sell personal personal details are cast about in the near - boundless reaches of cyberspace Valenzu ela less and not more invasive. Regrettably, more and more of our Valenzuela was decided. That extraordinary progress, however, makes advances in business practices and technology over the two decades since The dissent rightly laments the assault on privacy from the unparalleled

Cir. 1978) (emphasis omitted), ce rt. denied, 440 U.S. 949 (1979). Reporters Com. v. American Telephone & Telegraph, 593 F.2d 1030, 1043 (D.C.

recollections for evidence. these third parties, to inspect their records, and to probe their activities for pos sible violations of the law, it is free to seek out Government is subsequently called upon to investigate his parties, he surrenders Fourth Amendment protections, and, if the To the extent an individual knowingly exposes his activities to third others. He cannot expect th at these activities are his private affair. behind, as evidence of his activity, the records and recollections of transact business with other people. When he does so, he leaves his most private purposes, the individual must occasionally his activities to public view. In a ny normal life, even in pursuing private enclave, draw other people into his activities, and expose Every individual must from time to time reach beyond his

are disclosed to third parties and are therefore not subject to protection: expectation of privacy in their telephone records, noted that b usiness records The D.C. Circuit, in holding that individuals have no reasonable p. 13 13

150 N.H. at 48 - 49. expectation is one that society is prepared to recognize as reasonable. Goss, had an actual, subjective expectation of privacy and second, whether this of the defendant’s privacy expectation, we examine first, whether the defendant U.S. 347, 360 - 62 (1967) (Harlan, J., concurring). To determine the legitimacy from unreasonable governmental intrusions. See Katz v. United States, 389 Part I, Article 19 exist to protect a person’s legitimate expe ctation of privacy Hampshire Constitution. This analysis recognizes that the requirements of reasonable expectation of privacy analysis under Part I, Article 19 of the New In State v. Goss, 150 N.H. 46 (2003), for the first time, we adopted a

protection of this information from warrantless seizures. The reality of today’s technological society and common experience requires telephone calls compiled by U.S. Cellular in its ordinary course of business. a reasonable expectation of privacy in the information concerning his cellular of the lead opinion and the special concurrence that the defendant did not have NADEAU and GALWAY, JJ., dissenting. We disagree with the conclusion

For these reasons, I concur specially. billing records should be protected from the reach of a prosecutor’s subpoena. us. I would, however, encourage the legislature to examine whether telephone from warrantless intrusions, I do not find such expectations in the case before While objectively reasonable expectations of privacy mus t be shielded

held by banks and other institutions. permitting individuals to contest governmental access to their financial records the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401 - 3421 (2000), Congress stepped in to protect individuals’ financial information. It enac ted Additionally, in response to the Supreme Court’s holding in Miller,

assault.” RSA 632 - A:6, II (1996), :6, III - a (Supp. 2004). actor” as well as “[t]he v ictim’s manner of dress at the time of the sexual consensual sexual activity between the victim and any person other than the last thirty years that the legislature has prohibited evidence of “[p]rior (1861); State v. Lemire, 115 N.H. 526, 532 (1975). It has only been within the chastity” was admissible in rape cases. See State v. Forshner, 43 N.H. 89, 89 hundred years, evidence of “the general character of the prosecutrix for privacy of rape victims after this court had refused to do so. For over one The legislature has also seen fit to pass rape - s hield laws to protect the

LaRoche, 122 N.H. 231, 233 (1982). supervision of a physician or surgeon” as required by the statute. State v. emergency medical technicians because they do not work “under the construed the physician - patient privilege quite strictl y, refusing to apply it to p. 14 14

determining the cost of the service utilized.” Sporleder, 666 P.2d at p. 14 141. We as a means of communication and the telephone company’s method of as s imply the unavoidable consequence of the subscriber’s use of the telephone We view the “disclosure to the telephone company of the number dialed

private life. See Valenzuela, 130 N.H. at 200 (Batchelder, J., dissenting). subpoenaed by the State in this case can provide a virtual mosaic of a person’s Sporleder, 666 P.2d at p. 14 141. Moreover, a collection of the information

government. privacy and transpose it into an assumed risk of disclosure to the the telephone subscriber does not alter the caller’s expectation of company, fo r internal business purposes, of the numbers dialed by society . . . . The concomitant disclosure to the telephone to one’s ability to effectively communicate in today’s complex A telephone is . . . a personal and business necessity indispensable

company for bi lling purposes.” Id. It seems clear to us that: “the individual must accept that this information will be collected by the Com v. Beauford, 475 A.2d 783, 789 (Pa. Super. 1984). To use the service, have access to the numbers he dials and the frequency of times he dials them.” America today has very little choice about whether the telephone c ompany will at 200 (Batchelder, J., dissenting). “For all practical purposes an individual in telephone is a necessary . . . component of modern life.” Valenzuela, 130 N.H. business purpose is a voluntary disclosure of these fac ts for all purposes. “The premise, that disclosure of certain facts to a telephone company for a limited Our decision in Valenzuela rested upon what we believe is a faulty

reasoning in Goss, and th e advances in technology of the last eighteen years. (1987), cert. denied, 485 U.S. 1008 (1988), in light of our holding and reconsider, therefore, our holding in State v. Valenzuela, 130 N.H. 175, 200 found protected under Part I, Article 19 of our State Constitution. We would household trash,” Goss, p. 15 150 N.H. at 49, information that we have previou sly receipts, prescription bottles and similar items that are regularly disposed of in telephone calls, it is not unlike that contained in “[p] ersonal letters, bills, billing purposes or consists of phone numbers dia led to make outgoing 135, p. 14 141 - 42 (Colo. 1983). Whether the information disclosed is recorded for prepared to recognize as reasonable. See, e.g., People v. Sporleder, 666 P.2d be free of government intrusio n and that this expectation is one that society is has an actual expectation that the dialing of numbers from his cell phone will of privacy in the information conveyed. We believe that a cell phone subscriber company in or der to use its services, that person has a reasonable expectation In our view, when a person communicates information to the telephone 15

expect and enjoy. could render meaningless the concept of privacy that society has come to protections the warrant requirement provides, these advances in technology possible increased intrusion into our personal lives. Left unchecked by the years since Valenzuela was decided, gigantic strides in technology have ma de privacy in the information required to make the purchase. During the eighteen possess, over the internet for delivery to someone else, has no expectation of Under the lead opinion’s reasoning, a person who orders items, legal to

dissenting). other purposes.” Smith v. Maryland, 442 U.S. 735, 749 (1979) (Marshall, J., need not assume that this information will be released to other persons for disclose certain facts to a . . . phone c ompany for a limited business purpose is not a discrete commodity, possessed absolutely or not at all. Those who process.” People v. Blair, 602 P.2d 738, 746 (Cal. 1979). In our view, “[p]rivacy by the calls he makes and receives, will be disclosed to outsiders without legal telephone company[;] he cannot anticipate that his personal life, as disclosed calls he makes will be utilized only for the accounting functions of the 1 50 N.H. at 49. A “telephone subscriber has a reasonable expectation that the that it is information “that few people would want to be made public.” Goss, retained by U.S. Cellular in the ordinary course of its business, it seems to us information the defendant provided was recorded for billing purposes and Cellular in order to make use of its telephone service. Although the possession and contained only information that he voluntarily conveyed to U.S. expectation of privacy in the billing records because they were never in his The lead opinion a sserts that the defendant does not have a reasonable

200 (Batchelder, J., dissenting). that the State can seize it without probable cause. See Valenzuela, 130 N.H. at assumption that the company will freely share that information with others, or purposes of using an instrument of pri vate communication does not justify the The compulsory disclosure of certain facts to the telephone company for the

record is a part of the privacy package. for release to other persons for other reasons. The . . . billing disclosure has been made for a limite d business purpose and not the nature of the instrumentality, but more significantly the it for the service. This disclosure has been necessitated because of through the telephone company’s property and without payment to aware of this information. Telephone calls cannot be made except because the telephone company and some of its employees are It is unrealistic to say that the cloak of privacy has been shed

State v. Hunt, 450 A.2d 952, 956 (N.J. 1982): find compelling the argument made by the Supreme Court of New Jersey in p. 16 16

of the citizens of New Hampshire would merely require the S tate to have a arbitrary and unpredictable results.” Id. at 504. Expanding the privacy rights will overruling its holding result in “a m ere exercise of judicial will with Div. of Motor Vehicles, 149 N.H. 502, 504 - 05 (2003) (quotation omitted). Nor would weigh in favor of the retention of its holding. Jacobs v. Director, N.H. overruling Valenzuela, therefore, would not create a “special hardship” which demand respect in a society governed by the rule of law. The consequences of years, we believe the holding in Valenzuela is not of such a nature as to Furthermore, because of the technological advances of the last eighteen

revisit it.” Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 304 (1994). decision has proven unworkable or badly reasoned . . . we will not hesitate to Prop. - Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (quotation omitted). “Where a require the continuance of recognized error.” Matare se v. N.H. Mun. Assoc. either rigidly applied or blindly followed. The stability of the law does not value of stability in legal rules, the doctrine of stare decisis is not one to be errs by adhering to it under principles o f stare decisis. “While we recognize the reasoning undermined by our decision in Goss, we believe that the lead opinion Because we consider Valenzuela to have been wrongly decided and its

Valenzuela, 130 N.H. at 201 (Batchelder, J., dissenting).

similar require ments. the communicative activities of a citizen without the burden of benefit of a warrant based on probable cause, and their monitoring person’s papers, in the course of an investigation without the difference between go vernment officials searching for and seizing a the scope of governmental power. In the end, I see no functional become more sharply defined as science and technology broaden government at any given time. The protected rights, of necessity, case by case basis in l ight of the technology available to the areas of protected privacy must be examined and determined on a government at the time of the adoption of article 19. Rather, the limited to protections against the intrusive capabilities of the protective force of article 19. Similarly, article 19 should not be to, for example, telephonic communications should not alter the in technology from paper as the medium for the flow of information content of the information contained in them. The mere advance little or no intrinsic value. The va lue of “papers” rests in the searches and seizures. “Papers” as tangible objects, however, have Article 19 protects a person’s “papers” from all unreasonable

than it was in 1987. Justice Batchelder’s statement in Valenzuela is even more relevant today p. 17 17

For these reasons, therefore, respectfully, we dissent.

would reverse the defendant’s conviction and remand for a new trial. State without a warrant. Because the State does not argue harmless error, we Cellular, and exclude them fro m evidence because they were seized by the has a reasonable expectation of privacy in the billing records held by U.S. Accordingly, we would overrule Valenzuela and hold that the defendant

standard that the State must routinely meet to gather other evidence. warrant supported by probable cause before obtaining this informat ion, a